ro

Section 2255 petitions are “neither a recapitulation of nor a substitute for a direct appeal.”
McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996) (citations omitted). Thus, a §
2255 motion cannot raise: (1) issues that were raised on direct appeal, unless there is a showing
of changed circumstances; (2) non-Constitutional issues that could have been raised on direct
appeal, but were not; and (3) Constitutional issues that were not raised on direct appeal. See
Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992) (overruled on other grounds by
Castellanos v. United States, 26 F.3d 717 (7th Cir.1994)).

There are two exceptions to the procedural default rule: (1) if the movant demonstrates
cause for failing to raise the issue and actual prejudice resulting therefrom; or (2) the court’s
refusal to consider the Constitutional issue would result in a fundamental miscarriage of justice,
which requires a showing of actual innocence. See Belford, 975 F.2d at 313 (collecting
authority); see also McCleese, 75 F.3d at 1177-78 (discussing fundamental miscarriage of
justice). With these principles in mind, the court examines Jackson’s motion.

B. Jackson’s Claims for Relief under § 2255

Jackson raises a total of six claims she asserts entitle her to relief under § 2255. In her
initial Motion to Vacate, Set Aside, or Correct her Sentence, Jackson asserts a Sixth Amendment
violation of her “compulsory process rights,” a Sixth Amendment violation of her “right to
appeal,” and asserts that a new rule of law entitles her to relief. In her Memorandum in Support
of her § 2255 Motion, she asserts that her sentence exceeds the allowable statutory maximum, in
violation of the United States Supreme Court ruling in Apprendi v. New Jersey, 530 U.S. 466
(2000). In her Amended Memorandum in Support of her § 2255 Motion, she asserts that her

sentence was improper under the Federal Sentencing Guidelines (“Guidelines”). In her Reply to


reasons: her attorney failed to object at trial, and on appeal, to the court’s allegedly flawed
application of the Guidelines, and her attomey failed to appeal her conviction for obstruction of
justice. Def.’s Reply to Gov.’s Response to Angela Jackson’s § 2255 Mot., at 5. Jackson then
alleges prejudice, as, she asserts, these errors resulted in a higher sentence that she would have
received absent these errors. Id. at 6.

When a court reviews an ineffective assistance of counsel claim, the court’s review is
“highly deferential” to the attorney, “with the underlying assumption that ‘counsel’s conduct falls
within the wide range of reasonable professional assistance.’’”” United States v. Holman, 314
F.3d 837, 840 (7th Cir. 2002) (quoting Strickland, 466 U.S. at 689). To succeed in her claim,
Jackson must show “errors so serious that counsel was not functioning as the ‘counsel’
guaranteed [to her] by the Sixth Amendment . . . .” Holman, 314 F.3d at 839 (quoting
Strickland, 466 U.S. at 687). Jackson merely alleges that, in hindsight, her attorney made
strategic errors. This allegation is not enough to sustain a claim of ineffective assistance of
counsel. See Strickland, 466 U.S. at 689. Jackson’s sixth claim for relief under § 2255 is
therefore denied.

7, Jackson’s Request for an Evidentiary Hearing

Jackson requests an evidentiary hearing in order to examine the actions of the court, and
her counsel. Def.’s Reply to Gov.’s Response to Angela Jackson’s § 2255 Mot., at 6.
Evidentiary hearings are not required if the § 2255 “motion and the files and the records of the
case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255 { 2; see also

Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001); Daniels v. United States, 54 F.3d 290,

293 (7th Cir 1995). In this case, several of Jackson’s claims under § 2255 are procedurally


Constitutional issues that could have been raised on direct appeal but were not, nor can a § 2255
motion raise Constitutional issues that were not raised on direct appeal). As to (2), Jackson
could have brought this issue to the attention of the appellate court, but she failed to do so.
Jackson is therefore also procedurally barred from raising this issue in a § 2255 motion. See id.
Because Jackson makes no showing of cause for failing to raise these two issues, actual prejudice
to her from failing to raise these issues, or a “fundamental miscarriage of justice,” Jackson’s first
2. Jackson’s Claim of a Sixth Amendment Violation, Denial of Right to Appeal
Jackson next asserts that the court’s decision at trial not to make her “offer of proof
available to the appellate court as part of defendant’s complete record” prejudiced her ability to
argue her appeal “effectively.” Mot. Under 28 U.S.C. § 2255, at 5. Because Jackson failed to
raise this issue on appeal, it is procedurally barred at this stage of the game. See Belford, 975
F.2d at 313. Because Jackson again makes no showing of cause for failing to raise this issue,
actual prejudice to her from failing to raise this issue, or a “fundamental miscarriage of justice,”

Jackson’s second claim for relief under § 2255 is denied. See id.; see also McCleese, 75 F.3d at

1177-78.
3. Jackson’s Claim of a “New Rule of Law”

Jackson cites to the Electronic Signatures in Global and National Commerce Act
(“ESGNCA”), 15 U.S.C. § 7001 et seq., and asserts that this statute “grants the legal recognition
of electronic records giving them full weight as a hand written document.” Mot. Under 28
US.C. § 2255, at 5. Jackson’s assertion is arguably a correct statement of law. See 15 U.S.C. §

7001(a)(1) (‘a signature, contract, or other record relating to [a] transaction may not be denied


the Government’s Response, she again asserts improper sentencing under the Guidelines, and
adds an ineffective assistance of counsel claim. Finally, in her Reply, Jackson asks for an
evidentiary hearing in order to resolve issues concerning the court’s decisions at trial, and her
counsel’s effectiveness.

1. Jackson’s Claim of a Sixth Amendment Violation of her “Compulsory Process

Rights”

Jackson makes the following assertions in support of this claim: (1) “The trial judge
denied me the opportunity to make a record of witnesses I needed to call in my favor;” (2) “The
trial judge told me and my Attorney that local rules prohibited having a court reporter at the Ex
parte hearing.” Mot. Under 28 U.S.C. § 2255, at 5. Jackson, however, is procedurally barred
from bringing either of these issues in her § 2255 motion.

As to (1), it is not clear whether Jackson is disputing the court’s decision to exclude
evidence at trial, or whether she is disputing the court’s alleged decision to deny her the
opportunity to make a record of potential witnesses. Jackson raised the issue of the court’s

exclusion of evidence relating to white supremacist groups on appeal. See Jackson, 208 F.3d at

636. If Jackson is disputing the court’s decision to exclude this evidence, she is barred from
raising this issue in a § 2255 motion. See Belford, 975 F.2d at 313 (a § 2255 motion cannot raise
issues that were raised on direct appeal without a showing of changed circumstances); see also
Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995). Jackson failed, on appeal, to raise
the issue of the court’s alleged decision to deny her an opportunity to make a record of potential
witnesses. If Jackson is disputing this alleged decision, she is also barred from raising this issue

in a § 2255 motion. See Belford, 975 F.2d at 313 (a § 2255 motion cannot raise non-



5. Jackson’s Claim that the Court Inappropriately Applied the Federal Sentencing

Guidelines

In her Amended Memorandum of February 1, 2002, and her Reply of May 21, 2002,
Jackson asserts that the court failed to properly apply the federal sentencing guidelines to her
case. Jackson, however, failed to bring this issue on appeal. See Jackson, 208 F.3d at 638 (on
appeal, Jackson brought “evidentiary complaints,” and asserted that one count was “improperly
joined”). This claim is therefore procedurally barred. See United States v. Redding, 104 F.3d
96, 99 n.3 (7th Cir. 1996) (“arguments based on the Sentencing Guidelines must be raised on
direct appeal or not at all”); see also Martin v. United States, 109 F.3d 1177, 1178 (7th Cir.
1996). Jackson’s fifth claim for relief under § 2255 is therefore denied.

6. Jackson’s Ineffective Assistance of Counsel Claim

In order to establish that her counsel was ineffective, Jackson must “show that [her]
counsel’s performance was deficient, and that the deficiency prejudiced [her] defense.” See
Wiggins v, Smith, 539 U.S. 510, 521 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). An attorney’s performance is deficient if it falls “below an objective standard of
reasonableness.” Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 688). Prejudice is
established by showing that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Benefiel v. Davis,

357 F.3d 655, 662 (7th Cir. 2004) (quoting Strickland, 466 U.S. at 694). An ineffective
assistance of counsel claim may be brought in a § 2255 motion, regardless of whether the claim
was raised on appeal. Massaro v. United States, 538 U.S. 500, 504 (2003).

Jackson asserts that her attorney’s performance was deficient for the following two


Minute Order Form (06/97)
= ~

ye

United States District Court, Northern District of Illinois

Name of Assigned Judge

Charles R. Norgle

Sitting Judge If Other

or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 8370 DATE 10/21/2004
CASE Jackson vs. United States of America
TITLE
[In the following box (a) indicate the party filing the motion, e-g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]

Motion to vacate, set aside, or correct sentence brought pursuant to 28 U.S.C. § 2255

pursuant to 28 U.S.C. § 2255 is denied. See attached.

Locale”

(11) ra [For further detail see order (on reverse side (ean) to) the original minute order.]

DOCKET ENTRY: Fi

q) Oo Filed motion of [ use listing in “Motion” box above.} “

(2) 0 Brief in support of motiondue_

(3) a Answer brief to motion due___. Reply to answer briefdue__

(4) oO Ruling/Hearingon__setfor__—_at

(5) oO Status hearing[held/continued to] [set for/re-set for]on__—ssetfor at

(6) 0 Pretrial conference[held/continued to] [set for/re-set for]on___set for at_

{7) oO Trial[set for/re-set for] on at

(8) a [Bench/Jury trial] [Hearing] held/continued toa

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OLocal Rule 41.1 OFRCP41(a\(1) CO FRCP41(a)(2).

(10) M- [Otherdocket entry] Angela Jackson’s motion to vacate, set aside, or correct her sentence brought

Nd notice required, advised in open court.

No notices required.

Document: |
Number,

Notices mailed by judge’s staff.

Notified counsel by telephone.

X_ | Docketing to mail notices.
Mail AO 450 form. \
Copy to judge/magistrate judge. 4859 om erg Sn
hel
y date mailed notice
wpwe” OFF Kd 22 po nagy
inves Lily = > Dateftinpe received in a
i = ceontmatlerk’s Office sing depy ite



”

barred. Another claim cites an irrelevant statute. Her sentences did not exceed the statutory
maximum. Her ineffective assistance of counsel claim falls well short of the Strickland standard.
The record thus conclusively shows that Jackson is entitled to no relief under § 2255. Jackson’s
request for an evidentiary hearing is therefore denied.
Il, CONCLUSION
For the foregoing reasons, Angela Jackson’s motion to vacate, set aside, or correct her

sentence brought pursuant to 28 U.S.C. § 2255 is denied.

IT IS SO ORDERED.
ENTER:
CHARLES RONALD NORGL!) hive
United States District Court
bfryf th
DATED: “4

10



legal effect, validity, or enforceability solely because it is in electronic form... .”). This statute
was promulgated in order to “facilitate the use of electronic records and signatures in interstate
and foreign commerce by ensuring the validity and legal effect of contracts entered into
electronically.” ESGNCA, Executive Summary, af http://www. ftc.gov/os/2001/06/esign/7.htm.
Jackson does not explain what relevance a statute promulgated to facilitate e-commerce has to
her case. Jackson’s third claim for relief under § 2255 is therefore denied.

4, Jackson’s Apprendi Claim

In Apprendi, the United States Supreme Court laid down the following rule: “Other than
the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Jackson asserts that her sentence exceeds the
statutory maximum “because of factors not proved to a jury beyond a reasonable doubt.” Mem.
in Supp. of Def.’s Mot. Pursuant to 28 U.S.C. § 2255, at 1. Jackson’s sentences, however, do not
exceed the statutory maximum. Jackson was sentenced to sixty months imprisonment on the
mail and wire fraud charges. See Sentencing Order of May 11, 1999. The statutory maximum
for these offenses at the time Jackson was sentenced was sixty months. 18 U.S.C. § 1341 (1999);
18 U.S.C. § 1343 (1999). Jackson was sentenced to sixty-five months imprisonment on the
obstruction of justice charge. See Sentencing Order of May 11, 1999. The statutory maximum
for this offense at the time Jackson was sentenced was one hundred and twenty months. 18

USS.C. § 1503(b)(3) (1999). Jackson’s fourth claim for relief under § 2255 is therefore denied.


filed a Memorandum in Support of her Motion in December 2001, and an Amended
Memorandum in Support of her Motion in February 2002. The court then ordered the
government to file a Response to Jackson’s Motion. The government filed that Response in
April 2002. Finally, Jackson filed a Reply to the Government’s Response in May 2002.
Jackson’s Motion is fully briefed and before the court.
II. DISCUSSION
A. Standard of Decision
Section 2255 allows a person convicted of a federal crime to vacate, set aside, or correct
her sentence. This relief is available only in limited circumstances, such as where an error is
jurisdictional, of Constitutional magnitude, or there has been a “complete miscarriage of justice.”
See Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004). The statute states:
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the
sentence.
28 U.S.C. § 2255 | 1. Ifthe court determines that any of these grounds exists, it “shall vacate
and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial
or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255 § 2. In making that
determination, the court must review evidence and draw all reasonable inferences from it in a

light most favorable to the government. See United States v. Galati, 230 F.3d 254, 258 (7th Cir.

2000); Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992).

Section 2255 petitions are subject to various bars, including that of procedural default.



Jackson submitted a claim to UPS for $572,000, asserting that the packages were damaged, and
defaced with racial epithets. UPS refused to pay the claim.

At this point, Jackson began to send a series of letters to various African American
notables, including, inter alia, Iribhogbe, members of Congress, the Reverend Al Sharpton, Jesse
Jackson, and NAACP president Kweisi Mfume. These letters were mailed via UPS, and
contained racial slurs on the outside of the envelopes. The return address on these letters was
falsely listed as either the Euro-American Student Union or Storm Front, both white supremacy
groups.

Prior to these events, Jackson hatched an even stranger scheme against a Chicago police
officer. Sergeant Bernadette Heelan arrested Jackson for battery in June 1996. Jackson then
“used her credit card to order bottles of wine, Playgirl magazine, and sex toys that were delivered
to Heelan’s home. Jackson then filed a complaint with the Internal Affairs Department of the
Chicago Police Department accusing Heelan of stealing her credit card number during the arrest
and using it to make these unauthorized purchases.” Jackson, 208 F.3d at 636.

Jackson was subsequently charged under a ten count indictment alleging wire and mail
fraud (18 U.S.C. §§ 1341 and 1343) , and obstruction of justice (18 U.S.C. § 1503). After a jury
trial at which Jackson testified in her defense, Jackson was convicted on all counts. This court
then sentenced Jackson to a term of sixty months imprisonment on the wire and mail fraud
counts, and a concurrent term of sixty-five months imprisonment on the obstruction of justice
count. The Seventh Circuit affirmed in April 2000. See Jackson, 208 F.3d at 633.

B. Procedural History

In October 2001, Jackson filed the present collateral attack on her sentence. Jackson then


IN THE UNITED STATES DISTRICT COURT DOCKETED
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION OCT 2 & 2004
ANGELA JACKSON, )
Movant, ‘ No. 01 C 8370
v. } Honorable Charles R. Norgle
UNITED STATES OF AMERICA, }
Respondent. }

OPINION AND ORDER

CHARLES R. NORGLE, District Judge

Before the court is Angela Jackson’s motion to vacate, set aside, or correct her sentence
brought pursuant to 28 U.S.C. § 2255. Movant, Angela Jackson (“Jackson”), challenges her
sentences for mail fraud, wire fraud, and obstruction of justice. For the reasons stated below, the
motion is denied.

I. BACKGROUND!

A. Facts

In 1996 Jackson, an African American, opened a business intending to sell African
American artwork. Jackson then bought several paintings from the Chicago artist Bayo
Iribhogbe for $2000, and instructed Iribhogbe to send her the prints via United Parcel Service
(“UPS”). Iribhogbe did so, and the UPS driver and building personnel at Jackson’s residence

testified that the packages were delivered to Jackson in an undamaged condition. Nevertheless,

' A detailed description of the events underlying Jackson’s convictions is recited in
United States v. Jackson, 208 F.3d 633 (7th Cir. 2000).

1